Leave a legacyof love,not of chaos.

By Phia van der Spuy

Despite ongoing initiatives, including the Law Society of South Africa’s annual Free Wills Week, many South Africans still do not have wills. About 60% to 70% of people in South Africa simply cannot bring themselves to spend time drafting a document that sets out their wishes after they die. A common misconception is that only the wealthy need a will. It is the single most effective legal tool for deciding what happens to their assets, dependants, and legacy once they are gone. Many of the wills drafted by the 30% or so who do are challengeable because they were not properly drafted. Both scenarios often leave a legacy of chaos with unintended consequences. For a profession already battling a backlog of deceased estates at the Master’s offices, this should worry every practitioner who advises individuals and families on their affairs.

Why a will matters

A will is a formal legal document in which a person (the “testator”) sets out, in their own words, how their estate should be administered and divided after their death. Its value lies in the certainty it provides. With a properly drafted and signed will, a testator can:

• choose their own executor – the person legally responsible for winding up the estate – rather than leaving that decision to competing family members and, ultimately, to the Master of the High Court;

• appoint guardians for minor children and set up a testamentary trust to protect an inheritance for children or other vulnerable dependants;

• leave specific items – a family heirloom, a property, a share in a business – to particular people;

• provide for a life partner, stepchildren, or close friends who would otherwise have no automatic entitlement to the estate;

• reduce the scope for disputes between beneficiaries, which in turn keeps the estate out of the courts and reduces both delay and cost;

• deal with wishes such as who is authorised to close their social media accounts; and

• draft a “living will”.

Without a will, none of this is within the deceased’s control. Instead, the estate is wound up under a rigid formula set by law, which takes no account of the deceased’s wishes, family circumstances, or the practical needs of those left behind.

What the law says

The rules for drawing up a valid will in South Africa are set out in the Wills Act 7 of 1953. The Act sets out the formalities that must be followed; for example, the will must be signed by the testator in the presence of two competent witnesses, who must also sign. Where these formalities are not followed exactly, section 2(3) of the Act gives a court the power to step in. It may order the Master to accept a document as a valid will, even if it does not meet all the formal requirements, provided the court is satisfied that the deceased drew up or executed the document and genuinely intended it to be their will. This was confirmed by the Supreme Court of Appeal in Van der Merwe v Master of the High Court and Another 2010 (6) SA 544 (SCA): section 2(3) exists so that genuine testamentary wishes are not defeated purely because of a technical slip. More recently, in Perumal v Janse van Rensburg NO and Others \[2025\] ZAGPPHC 145, the Gauteng High Court had to grapple with whether an unsigned, electronically amended will could be condoned, a useful reminder that our courts are still working out how a law written in 1953 applies to the digital documents so many of us now use in everyday life.

When someone dies without a valid will – or without a will covering their whole estate – the Intestate Succession Act 81 of 1987 applies. This Act sets out a fixed order of inheritance:

• Spouse and children: If the deceased is survived by both, the spouse inherits the greater of R250,000 (or a statutorily determined amount) and a “child’s share”. The remaining balance is divided equally among the children.

• Spouse only: If there are no children or descendants, the spouse inherits the whole estate.

• Children only: If there is no surviving spouse, the children inherit the entire estate in equal shares.

• Parents only: If there is no spouse or children, the parents inherit the estate equally (or a single surviving parent splits it with the deceased parent’s descendants).

• Siblings only: If there is no spouse, children, or parents, brothers and sisters inherit in equal shares.

• Other relatives only: If none of the above applies, the estate passes to more distant blood relatives, such as uncles, aunts, or cousins.

• If none of the above applies: If no family member can be found, the assets go to the State.

Two Constitutional Court judgments have reshaped this framework in important ways, and both are essential reading for anyone advising on estates. In Bhe v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC), the Constitutional Court struck down the customary-law rule of male primogeniture, the rule that only the eldest male relative could inherit – and extended the Intestate Succession Act to all South Africans, regardless of which system of law had previously governed their marriage or family life. Then, in Bwanya v Master of the High Court, Cape Town and Others \[2021\] ZACC 51, the Constitutional Court held that excluding permanent life partners from the definition of “spouse” under both the Intestate Succession Act and the Maintenance of Surviving Spouses Act 27 of 1990 was unconstitutional. In practical terms, this means a surviving life partner in a committed relationship, with reciprocal duties of support, can now claim intestate benefits and maintenance from a deceased partner’s estate, even without a will and even without a registered marriage. Anyone drafting estate plans for clients in non-marital relationships needs to understand this shift.

Whether an estate is testate (there is a will) or intestate (there is not), the actual administration – appointing the executor, reporting the estate to the Master, and finally liquidating and distributing the assets - is ultimately regulated by the Administration of Estates Act 66 of 1965.

Good reasons every South African should have a will

The consequences of intestacy often extend well beyond the legal question of who technically inherits what. The following problems are most commonly encountered.

Delays before the estate can even be reported

Where there is no will nominating an executor, the family must first agree among themselves, and the Master must then approve who will act as executor. This alone can slow down the reporting of the estate at the very moment when dependants need access to funds most urgently.

Loss of control over children’s inheritances

When minor children inherit intestate, their share is usually paid into the Guardian’s Fund, a state-administered fund, rather than into a testamentary trust tailored to the family’s actual needs. Money held in the Guardian’s Fund can be difficult and slow to access before a child turns eighteen, creating real hardship for a surviving parent covering everyday expenses.

Forced sales and cash-flow problems

A surviving spouse who has to share the estate with children under the statutory formula may be forced to sell the family home or another illiquid asset simply to pay out the children’s share, a result that a well-drafted will could easily have avoided, for example through a usufruct (the right to use and benefit from a property during one’s lifetime) or a trust structure.

The wrong people inherit – or the right people don’t

The fixed order of intestate heirs cannot accommodate estranged relationships, second families, stepchildren who were never legally adopted, or friends and carers the deceased would have wanted to benefit. It can just as easily mean that an estranged parent or sibling inherits ahead of the people the deceased actually supported in life.

Fights over sentimental items

When several heirs inherit equal, undivided shares and cannot agree on how to divide personal belongings, the executor may have no choice but to sell those items, including those of real sentimental value, and divide the proceeds instead.

A more expensive, slower estate

An intestate estate, particularly a large one or one involving a blended family, is often more expensive and time-consuming to wind up than a well-planned testate estate, quietly eroding the very assets the heirs are meant to inherit.

Do you need more than a will?

It is not enough to have a will drafted once and then forgotten in a drawer. A recurring theme is not only the absence of a will; it is the lack of accessible, up-to-date information about a person’s assets, liabilities, policies, digital accounts and wishes, precisely when that information is needed most. That moment is usually the days immediately after a death, when family members are grieving and least equipped to search for paperwork. Practitioners should ensure that clients keep the information needed to wind up the estate current and accessible. Such information should be cross-checked against the will to ensure it is addressed in the will and aligns with the client’s wishes and estate plan.

The practitioner’s role

Drafting a legally valid will is about much more than merely complying with the Wills Act 7 of 1953. A professionally drafted will should reflect the client’s true intentions in clear, unambiguous language whilst remaining practical to administer and resilient against future disputes. Practitioners should satisfy themselves that the client has the necessary testamentary capacity, complies with all statutory formalities, understands the consequences of the instructions given, and is free from undue influence. Every provision should complement the client’s estate plan by taking into account their matrimonial property regime, ownership of assets, business interests, trusts, tax implications, liquidity requirements, and the needs of surviving spouses, minor children and vulnerable beneficiaries.

Assets should be correctly identified, trust assets distinguished from personally owned assets, and the will should be reviewed regularly as circumstances change. Careful attendance notes, supported where appropriate by medical evidence of testamentary capacity, may ultimately prove as important as the wording of the will if its validity is later challenged. As numerous South African judgments have demonstrated, clear expression of intention and proper planning remain the foundation of every effective estate plan.

As the Supreme Court of Appeal confirmed in Van Wetten and Another v Bosch and Others (402/2002) \[2003\] ZASCA 85; \[2003\] 4 All SA 442 (SCA); 2004 (1) SA 348 (SCA) (19 September 2003), the courts will always strive to give effect to a deceased’s true testamentary intention where legally possible. It is therefore essential that a will accurately records that intention from the outset.

Conclusion

Our law of intestate succession exists precisely because life – and death – do not always allow for proper planning. But by design, it is a blunt instrument: a fixed statutory formula that can never replicate the nuance of a person’s real family circumstances and wishes. The development of our law through legal precedent shows that our courts are actively working to make that formula fairer and more inclusive. But no judicial development can substitute for a personalised, validly executed, up-to-date will. Practitioners should encourage their clients to draft wills and, for those who have them, to review them to ensure they still reflect their current wishes, as influenced by ever-changing circumstances.

Phia van der Spuy is a Chartered Accountant with a Master’s degree in tax and a registered Fiduciary Practitioner of South Africa®, a Chartered Tax Adviser, a Trust and Estate Practitioner (TEP) and the founder of Trusteeze®, Estateeze™ and Lifeeze™, providers of digital fiduciary solutions.